Jurors And The Meaning of "Aggravating" and "Mitigating"

     Studies and anecdotal evidence confirm that jurors routinely get confused by legalese. The price of confusion is especially high when the death penalty is at stake. Imagine twelve perfectly nice people who would rather be home suddenly forced to decide a matter of life and death. What helpful advice do they receive? That in deciding whether to impose the death penalty they must consider aggravating and mitigating circumstances.

     The problem is that the average layman hasn't a clue what the terms "aggravating" and "mitigating" mean in the legal context. An aggravating factor is one that heightens the seriousness of the defendant's crime; for example a long history of violent crime. At best, most jurors will understand the word "aggravating" in its colloquial sense as "annoying."Murderers do tend to be pretty annoying--does that mean they should all get the death penalty?

     Mitigating factors are those that tend to lessen the defendant's guilt, such as certain mental conditions. The Supreme Court of Georgia confidently asserted that mitigation "is a word of common meaning and usage" and therefore need not be explained to the jury. Try to remember the last time you heard the word "mitigation" used in everyday conversation.

Adam Freedman, Party of the First Part, 2007